How to obtain a provisional waiver of unlawful presence

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On January 2, 2013, the Department of Homeland Security (DHS) released new rules regarding the permanent residence application process which will benefit immediate family members of U.S. citizens. It is not a change in the law, only a change in procedure. DHS officials say the new rules will take effect March 4, 2013.

Why the changes were needed

The law requires that spouses and minor children of U.S. citizens who entered the United States without inspection (undocumented) residing in the United States leave the country to obtain permanent residence (also known as a “green card”). The law imposes certain bars for individuals who leave the United States after residing here for more than six months without legal documentation. The most common is a bar of 10 years for people older than 18 years who have lived undocumented in the United States for more than one year. Immediate relatives of U.S. citizens can request a waiver of these bars if they can show that prolonged separation would cause extreme hardship to U.S. citizen family members. Prior to the implementation of the new rule, the process has usually been long and immediate relatives have waited outside the country for many months or even a year.

How the waiver application process will work under DHS's new rules

The new process will permit spouses and minor children of U.S. citizens to request the waiver before they leave the country, helping families to avoid prolonged separation. The change will only apply to spouses and minor children of U.S. citizens who can show extreme hardship to U.S. citizen parents or spouses. It will not benefit relatives of lawful permanent residents. It also will not apply to other types of waivers individuals may require to obtain their green cards and reenter the United States.

A step-by-step comparison

Process Before March 4, 2013

Process Beginning March 4, 2013

U.S. citizen files a relative petition on behalf of an immediate relative (minor child or spouse)

U.S. citizen files a relative petition on behalf of an immediate relative (minor child or spouse)

Family petition is approved

Family petition is approved

Consular processing begins (the U.S. Department of State will request the visa application, information about economic support and the schedules for the consular interview)

Consular processing begins (the U.S. Department of State will request the visa application and information about economic support)

The relative leaves the United States to attend the consular interview

The relative files a waiver of the bar to reentry for having been present in the United States for more than six months. For the waiver to be approved, the applicant must prove her departure would cause extreme hardship to a U.S. citizen spouse or parent.

During the consular interview, the immigration official determines that the relative needs a waiver of the bar to reentry bars for having been present in the United State for more than six months

The waiver is approved

A second consular interview is scheduled and the relative submits the waiver application

The relative leaves the United States to attend the consular interview

Often, after several months, the waiver is approved and the relative is finally permitted to return to the United States

Following the consular interview, it takes only a few weeks for the visa request to be processed so that the relative can return to the United States as a permanent resident

If the waiver is denied, the relative will usually be unable to legally reenter the United States

If the waiver is denied, it is possible that the relative will be referred to deportation proceedings.

WARNING: Don’t be a victim of immigration fraud. If you need legal assistance, consult a qualified immigration attorney or a legal aid organization recognized by the Board of Immigration Appeals.